HOUSE BILL NO. 14 "An Act relating to assault in the first degree; relating to sex offenses; relating to the definition of 'dangerous instrument'; and providing for an aggravating factor at sentencing for strangulation that results in unconsciousness." 1:30:53 PM REPRESENTATIVE JOHN LINCOLN, SPONSOR, introduced himself and thanked the committee for hearing the legislation intended to fix issues that had come to light the previous year. He referenced the situation where a man had strangled a woman and ejaculated on her while she was unconscious - the man had not received any jail time. The bill would change the law resulting in jail time for specific crimes. He delineated that HB 14 made strangulation to the point of unconsciousness a first degree assault and included the act on the list of aggravating factors for other crimes. In addition, the bill enhanced sexual assault statutes by adding unwanted contact with ejaculate to the definition of sexual contact and provided for victim notification to all sex crime victims, rather than just felony victims. He thanked all the people associated with drafting the bill. 1:32:38 PM Representative Josephson supported the legislation. He had been told that due to the amount of case law there was a preference to keep verbiage the same regarding the word semen. He asked if the issue had been discussed. ROSE FOLEY, STAFF, REPRESENTATIVE JOHN LINCOLN, replied that at the advice of Legislative Legal Services they had been advised to use the word ejaculate that was specific to both genders. She explained that semen referred only to males and there could be equal protection issues. Semen may or may not encompass all types of male ejaculate. Representative Josephson pointed to the language on page 2, lines 4 through 6, of the bill that made strangulation an assault and noted that the same language established it as an aggravator on page 7. He asked for detail on the decision to include the language twice. Ms. Foley answered that the decision had been made to keep both provisions intact and give the prosecuting attorney and judge as much discretion as possible. She added that in some cases using the aggravator versus the assault might result in a stiffer sentence. 1:35:26 PM Representative Carpenter asked what happened if a person was strangled but not to the point of unconsciousness. Ms. Foley answered that the bill applied to a strangulation to the point of unconsciousness. She elaborated that if a person was conscious the crime would be assault in the second degree. Ms. Foley reviewed the sectional analysis (copy on file): Section 1: Amends AS 11.41.200(a), classifying strangulation to the point of unconsciousness as assault in the first degree. Section 2: Amends AS 11.81.900(b)(15), clarifying that "dangerous instrument" with relation to strangulation includes hands or "other body parts". Section 3: Amends AS 11.81.900(b)(60), to include in the definition of sexual contact "knowingly ejaculating on the victim". Section 4: Amends AS 12.55.155(c), adding strangulation to the point of unconsciousness to the list of aggravating factors to be considered at sentencing. Section 5: Amends AS 12.61.015(a), adding all victims of sex crimes to the notification requirements of this statute. This section also adds language to existing subsection (a)(4), directing the prosecuting attorney to record the victim's (or victim's legal guardian's) response to a proposed plea agreement before entering into such an agreement. Section 6: Amends AS 12.61.015, adding a new subsection (d) and (e). Subsection (d) provides the court may reschedule a plea agreement to allow additional time for the prosecutor to comply with the victim notification requirements. Subsection (e) clarifies that a victim is in no way required to provide a response regarding a plea agreement, nor would the victim's response bind the prosecutor to accept or reject the plea agreement. Section 7: Establishes that the provisions are applicable only to crimes committed on or after the effective date of the legislation. Co-Chair Wilson asked about the word "knowingly" in Section 3. She asked how to know if a person knowingly committed an act. Ms. Foley replied that it depended on the intent of the act. Co-Chair Wilson directed the question to the Department of Law (DOL) JOHN SKIDMORE, DIRECTOR, CRIMINAL DIVISION, DEPARTMENT OF LAW (via teleconference), responded that to answer the question he would explain the element of mens rea that was the intention or knowledge of wrongdoing. He stated that in HB 14 the standard was knowingly. He defined knowingly as aware that the conduct is of that circumstance. The state would need to demonstrate that the defendant recognized that he was engaged in activity that resulted in ejaculate landing on the victim and would use the facts of the case to establish knowingly. The circumstantial evidence would have to be applied since it was impossible to know what was in the persons thought process. 1:40:07 PM Representative Knopp looked at Section 1 and asked why strangulation to the point of unconsciousness was not considered attempted murder. Mr. Skidmore answered that attempted murder had a very specific element that the person acted with the mens rea of intent; the conscious objective to cause the result. He exemplified that if a person strangled another person to the point of cutting off blood or air to the brain, they may have had a different conscious objective other than attempted murder. The provision in HB 14 did not require a prosecutor to prove attempted murder but there was nothing impacting the statute from also charging attempted murder if additional evidence warranted the charge. Co-Chair Wilson OPENED public testimony. ELIZABETH WILLIAMS, NO MORE FREE PASSES, ANCHORAGE (via teleconference), vocalized strong support for the legislation. She believed that the bill sent a cultural message that strangulation was taken seriously in the state. She noted that she was a social worker and had personally worked with many clients that had been strangled and the act was often diminished in the courts. Her organization was in favor of amending the bill to include strangulation not to the point of unconsciousness. She cited SB 12-Assault; Sex Offenses; Sentencing Credit that increased the act of strangulation to Assault in the third and second degree without proof the victim lost consciousness. In addition, they did not want to see time on electronic monitoring to count towards the offender's sentence. 1:44:15 PM Co-Chair Wilson recognized Senator Lora Reinbold and Representative Geran Tarr in the audience. CARMEN LOWREY, EXECUTIVE DIRECTOR, ALASKA NETWORK ON DOMESTIC VIOLENCE AND SEXUAL ASSAULT, testified in support of the legislation. She explained that the network constituted 25 member programs across the state providing victim based services that included shelter. She thanked the bill sponsor for introducing the bill. She remarked that the bill elevated the issue of the lethality of strangulation. She reminded members that strangulation involved cutting off oxygen to the brain and only took 10 seconds before unconsciousness occurred. Multiple strangulations could bring about long-term health impacts such as a stroke. She indicated that strangulation was difficult to verify; often marks were not left on an individual. Second, she pointed to the value of Section 5 related to victim engagement in plea agreements. She emphasized the importance of the provision. She explained that the provision helped others to learn what the circumstances for strangulation were and about what justice meant for victims. In addition, society learned how and why victims were involved in order to adapt procedures that addressed the issue. She discussed that the bill created a victim survivor centered process that gave victims a voice. She reiterated her full support of the bill. 1:48:14 PM JANELL MANCHESTER, 49TH RISING, FAIRBANKS (via teleconference), spoke in support of the bill. She underscored that the legislation would help create a safer Alaska and helped address the epidemic of sexual and domestic violence in the state. She offered that survivors were encouraged to report but noted that the legal system was notoriously unfriendly to survivors. She shared information about a case where a woman had declined to press charges because the police informed her that the defense attorney would tear her down in court. She did not want survivors to ever have to endure that type of conversation again. She stated the bill would ensure the legal system was more survivor friendly and kept victims safe. The bill included a victim notification system for all sex offenses and stipulated that a court could reschedule a plea agreement if notification did not occur. She favored the bills elevation of the crime of strangulation. She stressed that strangulation was a serious and deadly form of abuse. Victims of strangulation were seven times more likely to be killed by their partners. The legislation provided another tool for victims advocats that helped ensure survivors safety. Finally, the bill would close the Schneider loophole and make nonconsensual contact with ejaculation a form of sexual violence. 1:50:23 PM LYNNETTE CLARK, SELF, FOX (via teleconference), spoke in support of the legislation. She shared that she had been a victim of domestic violence and had been choked almost to the point of unconsciousness. She detailed the horrific nature of the experience. She believed that the bill addressed the perpetrators. She favored that the bill granted the judge more discretion and allowed for mitigating factors. She thought that men and women were not safe in present times. Co-Chair Wilson CLOSED public testimony. Representative Josephson noted there had been a person who had asked questions about SB 12, which had similarities and differences compared to HB 14. Co-Chair Wilson interjected that SB 12 was not before the committee. She offered that he could ask about a specific concept. Representative Josephson asked how HB 14 treated strangulation not to the point of unconsciousness. Mr. Skidmore answered that neither HB 14 nor SB 12 drew a distinction for attempt. He cited AS 11.31 that defined attempt as when a person took a substantial step towards the results defined in the elements of a crime. In the case where someone took substantial steps towards strangulation to the point of unconsciousness the charge resulted in an attempted assault. The impact of attempted assault was a lower charge by one level. He exemplified that strangulation not to the point of unconsciousness resulted in charging a Class B felony versus a Class A felony and an attempt was treated as an Assault II, a Class C felony. 1:54:32 PM Representative Josephson understood that the statutory definition of AS 11.31 brought down the classification by one level. He indicated that the only thing added in the bill was the express inclusion of unconscious." He asked if strangulation would still be charged as Class A, B, or C felony with passage of the bill. Mr. Skidmore was unfamiliar with the concept that strangulation would be charged as an A, B, or C felony. He explained that the current statute defined strangulation as causing injury by means of a dangerous instrument. A dangerous instrument was defined as using hands or other objects to impede normal breathing or circulation of blood and when combined with physical injury the charge was Assault II and if the injury was severe the charge could be an Assault I. The bill added the term unconsciousness to clearly articulate when the legislature believed strangulation reached the point of serious injury. The bill did not change the definition of serious physical injury and he reiterated that he was uncertain what Representative Josephson was referring to. He noted that there was a theory under Assault III that considered a threat of violent conduct placing the person in fear could be a Class C felony and was like the attempt concept. Representative Josephson cited that Assault III referred to a dangerous instrument in a subsection that lead to the hands in strangulation. He surmised that the assumption in HB 14 was if a victim passed out the strangulation was charged as a Class A felony and if the person did not pass out, but physical injury was proven the charge resulted in a Class B felony. He asked for concurrence. Mr. Skidmore agreed with the conclusion. Co-Chair Wilson asked about the provision that allowed electronic monitoring counting as time served. She wondered whether the court was required to offer credit or if the judge had discretion. Mr. Skidmore answered that the case law that supported the statute made it highly unlikely that credit for time served would not be awarded. 1:58:25 PM Co-Chair Wilson remembered that the statute stated "may," but she wanted Mr. Skidmore to clarify the statute and place it on the record. 1:58:50 PM AT EASE 1:59:48 PM RECONVENED Mr. Skidmore was currently looking at the documents and needed a couple of additional minutes. He offered to provide the answer via email. Co-Chair Wilson asked Mr. Skidmore to provide the information the following morning. Mr. Skidmore noted he would be on a plane at that time, but he would provide the information to a colleague. HB 14 was HEARD and HELD in committee for further consideration.